Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

  Self-represented

Ibec

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969

IR - SC - 00001095

09/02/2023

The worker is employed as Security Team Lead.  He has worked with the employer since 2013.

The dispute relates to disciplinary proceedings, the outcome of which resulted in a first written warning issuing to the worker on 8 December 2022. 

The worker takes issue with the severity of the sanction having regard to the nature of the alleged offence and contends that his previous good service record was ignored.

The worker agreed to deliver manual handling training to catering staff at 10am on Saturday, 20 August 2022. 

The worker had not been scheduled to work on 20 August 2022 and was told that he would receive a day in lieu for delivery of the training on that day.  It was ordinarily the case that manual handling training was delivered as part of a scheduled day of work.

In advance of the training, the catering manager provided the worker with the names of the training course attendees and the worker confirmed the on-site room where the training would take place. 

The worker attended the site at approximately 9.20am on 20 August 2022; he had a cup of coffee before going to reception to meet the attendees.  The worker waited until 10.20am approximately and left the site on the assumption that nobody had turned up for training.

On 26 August 2022, the employer informed the worker of the commencement of an investigation into allegations that he had left the site unauthorised and cancelled manual handling training without management approval on 20 August 2022. 

A disciplinary sanction in the form of first written warning issued to the worker in December 2022.

The worker appealed the sanction on the basis that it was excessive of the alleged offence and did not take account of his previous good record.

The worker was aware of similar cases where there had been lighter sanctions imposed.  The worker submitted that there were gaps in the witness statements, progressive natural justice had not been applied in his case and he had never been told that his conduct could be construed as misconduct warranting a first written warning. 

The worker sought a reduction in the sanction to a verbal warning.

A written submission on behalf of the employer was submitted to the Workplace Relations Commission. 

The submission raised an objection to the dispute being investigated.  It also outlined the procedure followed by the employer in addressing with the worker a complaint that he had left his place of work without authorisation and cancelled manual handling training. 

It was submitted that there had been compliance with SI 146 of 2000 (Code of Practice on Grievance and Disciplinary Procedures) and that the principles of natural justice were adhered to in and around how the complaint was addressed with the worker.

In conducting my investigation, I have taken account of all relevant submissions and documentation presented to me by the parties.

The employer did not attend the hearing at the Workplace Relations Commission on 29 June 2023.  I note in this regard the employer’s written submission which advised that the employer would not attend the adjudication process as it stood over the sanction given to the worker and was satisfied that the worker had been afforded a fair process, which included an appeal.  Its position in essence was that the sanction issued to the worker was proportionate and in line with the employer’s policies and procedures.

In relation to the employer not consenting to the investigation of the dispute, I note that this was raised by or on behalf of the employer in the written submission received by the Commission on 7 June 2023.  The Commission notified the employer of the dispute by correspondence dated 2 March 2023, which included information on the right to object.  The Commission was notified of the details for the employer’s representative on 20 March 2023. 

My jurisdiction to investigate and make a recommendation to the parties to a trade dispute is set out in section 13 of the Industrial Relations Act 1969.  Section 13(3)(b) provides that I shall not investigate a trade dispute where either the Court has made a recommendation in relation to the dispute or if a party to the dispute notified the Commission in writing that it objects to the dispute being investigated.

Section 36(1) of the Industrial Relations Act 1990 is also relevant in this context:-

“An objection under section 13(3)(b)(ii) of the Industrial Relations Act, 1969, by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.”

Accordingly, given the timeline set out above, I am satisfied that I have jurisdiction to investigate the dispute referred to me.

The worker does not take issue with the employer’s decision to investigate what occurred in relation to the manual handling training not going ahead on 20 August 2022.  The worker’s dispute is in relation to the disciplinary sanction imposed. 

I have very carefully considered the documentation and the worker’s submissions in this case. 

The worker left the site on 20 August 2022 without checking beyond the reception area for manual handling training course attendees.  I note the worker had arranged by email a location on-site for the training to take place, and it was not the reception area.  Due to the worker leaving the site of his own accord, the manual handling training did not take place and the staff who had attended for training were told to go home.  

The worker was asked to attend an investigation meeting on 1 September 2022, was informed of the right to be accompanied to the meeting by a work colleague or a trade union representative and was provided with a copy of the employer’s disciplinary policy. 

The investigation report dated 21 October 2022 proposed formal disciplinary action on foot of the investigation and provided the reasons for same.  The worker submitted at the hearing that he had not received the investigation report.  However, this is not consistent with the minutes of the disciplinary hearing dated 2 December 2022, provided to me by the worker, in which the worker confirms receipt of the investigation report.  I note that the minutes were read back to the worker before the meeting concluded, the worker confirmed the accuracy of the minutes and was sent a typed copy of the minutes for his records on 5 December 2022. 

The worker was provided with witness meeting notes and emails from the investigation on 4 November 2022. 

By correspondence dated 29 November 2022, the worker was invited to a disciplinary hearing on 2 December 2022.  The worker was informed that the meeting was of a disciplinary nature and that the outcome could result in disciplinary action in accordance with the employer’s disciplinary and capability policy.  The worker was also advised of the right to be accompanied at the meeting and that he would have a full opportunity to present his version of events. 

I am satisfied that, on receipt of the invite to the disciplinary hearing, the worker could not have been in any doubt about the potential disciplinary action outcome of the hearing and how the employer considered the allegations to be of a serious nature. 

The disciplinary outcome of a first written warning, to remain on the worker’s file for a period of 12 months, was communicated to the worker by letter dated 8 December 2022.  The disciplinary outcome letter outlines the context and conduct which was considered by the employer to be unacceptable.

The worker appealed the disciplinary outcome on 14 December 2022 on the grounds that the sanction was disproportionate to the alleged offence and that it failed to take account of his previous good record of 24 years working in the security industry.  A disciplinary appeal meeting took place on 10 January 2023.  The disciplinary sanction was upheld on appeal and the appeal outcome was communicated to the worker on 31 January 2023.  The appeal outcome addressed the question of a lesser sanction and considered the implications of the worker leaving the site unauthorised on 20 August 2022, along with the employer’s procedures which provide for a sanction appropriate to the nature of the offence. 

I am satisfied that the investigation and disciplinary procedures applied by the employer in this case were fair, reasonable, and warranted. The general principles of natural justice and fair procedures were complied with.  The imposition of a disciplinary sanction in the form of a first written warning was not unreasonable and I find no reason to interfere with the level of the sanction imposed.  In this regard, I note that a first written warning is at the lower end of the disciplinary sanction scale and that it is not an absolute, either under the terms of the worker’s contract of employment or SI 146 of 2000, that the sanction for a first disciplinary offence will be an oral warning.

In the circumstances, I do not recommend in favour of the worker.

Industrial relations dispute – Disciplinary sanction